Agenda - Planning Commission - 04/05/2012

Home

February 10, 2012 I Volume 6 I No. 3 Zoning Bulletin DNREC maintained that there was no direct conflict between the two buffer zones because "[n]othing in the PCS buffer of 100 feet prevents compliance with the [County ordinance]'s buffer of 50 feet" Moreover, DNREC argued that S% 4 and 5 of the PCS Regulations did not consti- tute zoning because they were promulgated for pollution control purpos- es only. As such, DNREC maintained that the PCS Regulations were law- fully promulgated pursuant to title 7, § 6010(a) of the Delaware Code to effectuate Chapter' 60's express policy and purpose of pollution control. The superior court agreed with the County. It held that §§ 4 and 5 of the PCS Regulations constituted "zoning," and . thus directly conflicted with the County Ordinance. The court held those portions of the PCS Regulations were therefore void. DNREC appealed. DECISION: Affirmed. The Supreme Court of Delaware agreed with the superior court. It held that DNREC exceeded its authority in enacting buffer zones under the PCS Regulations, §S 4 and 5. In so holding, the court explained that the General Assembly had "made clear that the authority to adopt a comprehensive land use plan in [the County] [was] vested solely with the government of [the Coun- ty]." The court found this clarity in multiple relevant statutes that del- egated zoning power to the County, including: title 9, section 69024a) of the Delaware Code (which specifically delegates zoning power to the County); title 9, § 7001 (the Home Rule statute); and title 9, § 6951 (the Quality of Life Act of 1988). The court also found that, as part of the comprehensive land use plan process, the state's Land Use Planning Act (as well as the Quality of Life Act and the Delaware Land Protection Act) requires DNREC and other state agencies to bring zoning issues to the county government. Since sole zoning authority vested in the County, the court first deter- mined whether §S 4 and 5 of the PCS Regulations conflicted with the County Ordinance's buffer zone regulation. The court found they did conflict. Among several other points, the court found that the "conflict [was] dramatically illustrated by § 4.7 of the PCS Regulations, which prohibits the submission to Sussex County of final site plans and final major subdivision plans unless they comply with the PCS Regulations." The remaining issue then, was whether the PCS Regulations were valid, even if they conflicted with the County Zoning Ordinance. The court determined that § 4 and portions of § 5, which established buffer zones, were not valid because they constituted zoning. The court held that the buffer zones established in the PCS Regulations and the related 10 © 2012 Thomson Reuters